Exhibit 3.2
AMENDED BYE-LAWS
OF
XOMA LTD.
ARTICLE I
OFFICES
Section 1. The registered office shall be at such location in Bermuda as
the Board of Directors shall determine.
Section 2. The Company may also have offices at such other places both
within and without Bermuda as the Board of Directors may from time to time
determine or the business of the Company may require.
ARTICLE IA
SHARES
Section 1. Subject to any resolution of the shareholders to the contrary
and without prejudice to any special rights previously conferred on the holders
of any existing shares or class of shares, the share capital of the Company
shall be divided into common shares of par value US$0.0005 each ("Common
Shares") and preference shares of par value US$0.05 each ("Preferred Shares").
Section 2. The holders of Common Shares shall, subject to the provisions of
these Bye-Laws:
(a) be entitled to one vote per share;
(b) subject to the rights of the holders of the Preferred Shares, be
entitled to such dividends as the Board of Directors may from time to time
declare;
(c) subject to the rights of the holders of the Preferred Shares, in
the event of a winding up or dissolution of the Company, whether voluntary
or involuntary or for the purpose of a reorganisation or otherwise or upon
any distribution of capital, be entitled to the surplus assets of the
Company; and
(d) generally be entitled to enjoy all of the rights attaching to
shares.
Section 3. Subject to these Bye-laws and to any resolution of the
shareholders approved by at least 75% of all issued shares entitled to vote in
respect thereof and without prejudice to any special rights previously conferred
on the holders of any existing shares or class of shares, the Board of Directors
shall have power to issue any unissued shares of the Company on such terms and
conditions as it may determine and any shares or class of shares may be issued
with such preferred, deferred or other special rights or restrictions, whether
in regard to dividend, voting, redemption, conversion, exchange, return of
capital or otherwise as the Board of Directors may from time to time (without
any requirement of shareholder approval or authorisation) prescribe. Where such
rights and restrictions have been prescribed they shall be set out in a
Certificate of Designation included in or annexed to the minutes of the meeting
of the Board of Directors which prescribed such rights and restrictions.
Section 4. The Board of Directors shall, in connection with the issue of
any share, have the power to pay such commission and brokerage as may be
permitted by law.
Section 5. The Board of Directors may from time to time do any one or more
of the following things:
(a) make arrangements on the issue of shares for a difference between
the shareholders in the amounts and times of payments of calls on their
shares;
(b) accept from any shareholder the whole or a part of the amount
remaining unpaid on any shares held by him, although no part of that amount
has been called up;
(c) pay dividends in proportion to the amount paid up on each share
where a larger amount is paid up on some shares than on others; and
(d) issue preference shares in fractional denominations and deal with
such fractions to the same extent as the Company's whole shares and shares
in fractional denominations shall have in proportion to the respective
fractions represented thereby all of the rights of whole shares including
(but without limiting the generality of the foregoing) the right to vote,
to receive dividends and distributions and to participate in a winding up.
Section 6. Subject to the provisions of Sections 42 and 43 of the Companies
Act 1981 (the "Act") any preference shares may be issued or converted into
shares that, at a determinable date or at the option of the Company, are liable
to be redeemed.
Section 7. If at any time the share capital is divided into different
classes of shares, the rights attached to any class (unless otherwise provided
by the terms of issue of the shares of that class) may, whether or not the
Company is being wound up, be varied with the consent in writing of the holders
of a majority of the issued shares of that class or with the sanction of a
resolution passed by the holders of a majority of the issued shares of that
class at a separate general meeting of the holders of the shares of the class in
accordance with Section 47 (7) of the Act, except that at such separate general
meeting the quorum shall be a majority of the issued shares of that class. If
there are no issued shares of a particular class, the rights attached to such
class may be varied solely by resolution of the Board of Directors. The rights
conferred upon the holders of the shares of any class issued with preferred or
other rights shall not, unless otherwise expressly provided by the terms of
issue of the shares of that class, be deemed to be varied by the creation or
issue of further shares ranking pari passu therewith.
Section 8. The Company may from time to time if authorised by resolution of
the shareholders change the currency denomination of, increase, alter or reduce
its share capital in accordance with the provisions of Sections 45 and 46 of the
Act. Where, on any alteration of share capital, fractions of shares or some
other difficulty would arise, the Board of Directors may deal with or resolve
the same in such manner as it thinks fit including, without limiting the
generality of the foregoing, the issue to shareholders, as appropriate, of
fractions of shares and/or arranging for the sale or transfer of the fractions
of shares of shareholders.
Section 9. The Company may from time to time purchase its own shares in
accordance with the provisions of Section 42A of the Act.
Section 10. The Board of Directors may capitalise any part of the amount
for the time being standing to the credit of any of the Company's share premium
or other reserve accounts or to the credit of the profit and loss account or
otherwise available for dividend or distribution by applying such sum in paying
up unissued shares to be allotted as fully paid bonus shares to the shareholders
(whether pro rata or not and whether in connection with the conversion of shares
or not). The Company may capitalise any sum standing to the credit of a reserve
account or sums otherwise available for dividend or distribution by applying
such amounts in paying up in full or in part unpaid or partly paid shares of
those shareholders who would have been entitled to such sums if they were
distributed by way of dividend or distribution.
-2-
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. All meetings of the shareholders, whether for the election of
directors or for any other purpose, shall be held at such time and place, either
within or without Bermuda, as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. At annual general meetings of shareholders, the shareholders
shall elect, by a plurality of the votes cast, a Board of Directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual general meeting stating the place,
date and hour of the meeting shall be given to each shareholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the Register of Members of the
Company shall prepare and make, or cause to be prepared and made, at least ten
days before every meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each shareholder and the number of shares registered in the name of
each shareholder. The list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
shareholder who is present.
Section 5. Special general meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by the Act may be held at any place,
within or without Bermuda, and may be called by the Chief Executive Officer and
shall be called by the Chief Executive Officer or Secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special general meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each shareholder entitled to vote at such
meeting.
Section 7. Business transacted at any special general meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the shares issued and entitled to
vote thereat, present in person or represented by proxy at the commencement of
the meeting, shall constitute a quorum at all meetings of the shareholders for
the transaction of all business (including the approval of an amalgamation)
except as otherwise required by the Act. If, however, such quorum shall not be
present or represented at any meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting (except as otherwise provided in this section),
until a quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, any question brought
before such meeting (including an amalgamation not covered by Section10 hereof)
shall be decided by a majority of the votes cast, unless the question is one
upon which by express provision of the Act or these Bye-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 10. The Company shall not engage in any business combination with
an interested shareholder for a period of three years after the transaction by
which such person became an interested shareholder, unless (i) both the holders
of 66 2/3% of all issued shares entitled to vote thereon (other than shares held
by an inter-
-3-
ested shareholder), voting at an annual or special general meeting, and the
Board of Directors approve such business combination, (ii) the Board of
Directors approved the proposed business combination prior to such shareholder
becoming an interested shareholder, (iii) the Board of Directors approved the
transaction by which such shareholder became an interested shareholder prior to
such shareholder becoming an interested shareholder or (iv) upon consummation of
the transaction which resulted in the shareholder becoming an interested
shareholder, the interested shareholder owned at least 85% of the issued voting
shares (excluding for purposes of determining the number of issued shares,
shares owned by directors who are also employees and by the Company's employee
benefit plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer). For the purposes of this section an "interested
shareholder" means any person (other than the Company or its subsidiaries) that
owns 15% or more of the issued voting shares of the Company (including any
affiliates and associates of such person) and a "business combination" includes
any (i) amalgamation, merger, consolidation or similar transaction, (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition of
greater than 10% (based on either the aggregate market value of all the
Company's consolidated assets or of all the issued shares of the Company) of the
assets of the Company or (iii) any transaction which has the effect, directly or
indirectly, of increasing the proportionate share of any class of shares of the
Company held by an interested shareholder.
Section 11. Unless otherwise provided in these Bye-laws or by the rights
attaching to any shares each shareholder shall at every meeting of the
shareholders be entitled to one vote in person or by proxy for each share
entitled to vote thereat held by such shareholder, but no proxy shall be voted
on after three years from its date, unless the proxy provides for a longer
period. Each shareholder may appoint a proxy to vote at any meeting (i) by a
written instrument subscribed by such shareholder in such form as the Board may
accept, or (ii) if provided in the written notice for such meeting, by
telephonic, electronic or other means of transmission (including, without
limitation, Internet voting).
Section 12. Unless otherwise provided in the Act or in these Bye-laws, any
action required to be taken at any annual or special general meeting of
shareholders of the Company, or any action which may be taken at any annual or
special general meeting of such shareholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of all shares entitled to
vote thereon.
Section 13. At each meeting of shareholders, the chairman of the meeting
shall fix and announce the time of the opening and the closing of the polls for
each matter upon which the shareholders will vote at the meeting and shall
determine the order of business and all other matters of procedure. Except to
the extent inconsistent with any such rules and regulations as adopted by the
Board of Directors, the chairman of the meeting may establish rules to maintain
order and safety and for the conduct of the meeting. Without limiting the
foregoing, he may:
(a) restrict attendance at any time to bona fide shareholders of
record and their proxies and other persons in attendance at the invitation
of the chairman;
(b) restrict dissemination of solicitation materials and use of audio
or visual recording devices at the meeting;
(c) establish seating arrangements;
(d) adjourn the meeting without a vote of the shareholders, whether or
not there is a quorum present; and
(e) make rules governing speeches and debate including time limits and
access to microphones.
The chairman of the meeting acts in his absolute discretion and his rulings
are not subject to appeal.
-4-
Section 14. The Board of Directors, either directly or through its
designees, shall, in advance of any meeting of shareholders, appoint one or more
inspectors to act at the meeting and make a written report thereof. The Board of
Directors may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of shareholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
The inspectors shall:
(a) ascertain the number of issued shares and the voting power of
each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors;
and
(e) certify their determination of the number of shares represented at
the meeting, and their count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist
them in the performance of their duties.
No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Supreme Court upon application by a shareholder shall determine
otherwise.
In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, ballots and the regular books and records of the
Company, except that the inspectors may consider other reliable information for
the limited purpose of reconciling proxies and ballots submitted by or on behalf
of banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the shareholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted herein, they at the time
they make their certification shall specify the precise information considered
by them including the person or persons from whom they obtained the information,
when the information was obtained, the means by which the information was
obtained and the basis for the inspectors' belief that such information is
accurate and reliable.
Section 15. The Board of Directors or, in the case of a special general
meeting, the Chief Executive Officer may, or the Secretary on instruction from
the Board of Directors or, in the case of a special general meeting, the Chief
Executive Office shall, postpone or cancel any general meeting called in
accordance with the provisions of the Bye-laws provided that notice of
postponement or cancellation is given to each shareholder entitled to vote at
such meeting before the time of such meeting. New notice of the date, time and
place for a postponed meeting shall be given to the shareholders entitled to
vote at such meeting in accordance with the provisions of these Bye-laws.
ARTICLE III
DIRECTORS
Section 1. The Board of Directors shall consist of not less than two
directors or such number in excess thereof as the shareholders may from time to
time determine. The Board of Directors may from time to time determine a maximum
number of directors. The directors shall be elected at the annual general
meeting of the
-5-
shareholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified, unless
sooner removed. Directors need not be shareholders. Nominations for the election
of directors may be made by the Board of Directors or a committee or person
appointed by the Board of Directors or by any shareholder entitled to vote in
the election of directors generally. However, any shareholder entitled to vote
in the election of directors generally may nominate one or more persons for
election as directors at an annual general meeting only pursuant to the
Company's notice of such meeting or if written notice of such shareholder's
intent to make such nomination or nominations has been received by the Secretary
of the Company in accordance with the procedures set forth in Article IV,
Section 3. Each such notice shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the person or persons to
be nominated; (b) a representation that the shareholder is a holder of record of
shares of the Company entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified in
the notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such person
or persons) relating to the nomination or nominations; (d) the class and number
of shares of the Company which are beneficially owned by such shareholder and
the person to be nominated as of the date of such shareholder's notice and by
any other shareholders known by such shareholder to be supporting such nominees
as of the date of such shareholder's notice; (e) such other information
regarding each nominee proposed by such shareholders as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the U.S.
Securities and Exchange Commission; and (f) the consent of each nominee to serve
as a director of the Company if so elected. No person shall be eligible for
election as a director of the Company unless nominated in accordance with the
procedures set forth in this Article III, Section 1. The presiding officer of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
this Article III, Section 1, and if he or she should so determine, the defective
nomination shall be disregarded.
Section 2. Vacancies and newly created directorships resulting from any
increase in the maximum number of directors may be filled by the Board of
Directors, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner removed. If there is not a quorum of directors in office, then any
vacancy may be filled in the manner provided by the Act.
Section 3. The business of the Company shall be managed by the Board of
Directors, which may exercise all such powers of the Company and do all such
lawful acts and things as are not by the Act or by these Bye-laws directed or
required to be exercised or done by the shareholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the Company may hold meetings, both
regular and special, either within or without Bermuda.
Section 5. The first meeting of each newly elected Board of Directors shall
be held immediately following the annual general meeting and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event that
such meeting is not held immediately following the annual general meeting, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or
as shall be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held without
notice at such regular time and at such place as shall from time to time be
determined by the Board of Directors.
Section 7. Special meetings of the Board of Directors may be called by the
Chairman of the Board by giving notice to each director; special meetings shall
be called by the Chairman of the Board or Secretary in like manner on the
written request of two directors unless the Board of Directors consists of only
one director, in which case special meetings shall be called by the Chairman of
the Board or Secretary in like manner and on like notice on the written request
of the sole director.
Section 8. At all meetings of the Board of Directors, a majority of
directors then in office shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
-6-
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by the Act or these Bye-laws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, provided notice is
given of the adjourned meeting.
Section 9. Unless otherwise restricted by these Bye-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or committee thereof, as the case may be, consent thereto in
writing, which writing or writings shall be filed with the minutes of
proceedings of the Board of Directors or a committee thereof.
Section 10. Unless otherwise restricted by these Bye-laws, members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the directors of the Company. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meetings of the committee.
Except as otherwise provided in these Bye-laws or by resolution of the Board of
Directors, the provisions of these Bye-laws relating to meetings of the Board of
Directors shall apply to meetings of committees.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
Any such committee, to the extent provided in a resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Company, and
may authorize the seal of the Company to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to: amending the memorandum of continuance or these Bye-laws (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares adopted by the Board of Directors, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the Company or
the conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or classes
of shares of the Company or fix the number of shares of any series of shares or
authorize the increase or decrease of the shares of any series); adopting an
agreement of merger, amalgamation or consolidation; recommending to the
shareholders the sale, lease or exchange of all or substantially all of the
Company's property and assets; recommending to the shareholders a dissolution of
the Company; and, unless a resolution of the Board of Directors expressly so
provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of shares. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 12. There shall be a committee of the Board of Directors designated
the "Compensation Committee." The Compensation Committee shall be comprised of
one or more directors of the Company. The Compensation Committee shall have the
authority as a committee of the Board of Directors as provided in Section 11
including, but not limited to, administering all provisions of the Company's
present and future share option, share purchase, incentive compensation, savings
or other similar plans (the "Plans"), for so long as the membership of the
Compensation Committee meet the requirements of the Plans, and issuing capital
shares necessary to perform as the "Committee" and the "Plan Administrator" (as
defined in the Plans) and in similar positions pursuant to the Plans. The
Compensation Committee may administer such other plans as determined and
authorized by the Board of Directors from time to time.
-7-
Section 13. There shall be a committee of the Board of Directors designated
the "Audit Committee." The Audit Committee shall be comprised of one or more
directors of the Company. The Audit Committee shall have the authority as a
committee of the Board of Directors as provided in Section 11 including, but not
limited to, approving the services performed by the Company's independent
accountants and reviewing the Company's accounting practices and system of
internal accounting controls.
Section 14. There shall be a committee of the Board of Directors designated
the "Nominating Committee." The Nominating Committee shall be comprised of one
or more directors of the Company. The Nominating Committee shall have the
authority as a committee of the Board of Directors as provided in Section 11
including, but not limited to, director evaluation and selection. Section 15.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 16. Unless otherwise restricted by these Bye-laws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and/or a stated salary as director. No such
payment shall preclude any director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
POWERS OF DIRECTORS
Section 17. The Board of Directors may from time to time and at any time
authorize any company, firm, person or body of persons to act on behalf of the
Company for any specific purpose and in connection therewith to execute any
agreement, document or instrument on behalf of the Company.
Section 18. The Board of Directors may from time to time and at any time by
power of attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Board of Directors, to be an attorney of
the Company for such purposes and with such powers, authorities and discretions
(not exceeding those vested in or exercisable by the Board of Directors) and for
such period and subject to such conditions as it may think fit and any such
power of attorney may contain such provisions for the protection and convenience
of persons dealing with any such attorney as the Board of Directors may think
fit and may also authorise any such attorney to sub-delegate all or any of the
powers, authorities and discretions so vested in the attorney. Such attorney
may, if so authorised under the seal of the Company, execute any deed or
instrument under such attorney's personal seal with the same effect as the
affixation of the seal of the Company.
Section 19. The Board of Directors may exercise all the powers of the
Company to borrow money and to mortgage or charge its undertaking, property and
uncalled capital, or any part thereof, and may issue debentures, debenture stock
and other securities whether outright or as security for any debt, liability or
obligation of the Company or any third party.
Section 20. The Board of Directors may exercise all the powers of the
Company to purchase all or any part of its own shares pursuant to Section 42A of
the Act or to discontinue the Company to a named country or jurisdiction outside
Bermuda pursuant to Section 132G of the Act.
Section 21. All acts done bona fide by any meeting of the Board of
Directors or by a committee of the Board of Directors or by any person acting as
a director shall, notwithstanding that it be afterwards discovered that there
was some defect in the appointment of any director or person acting as
aforesaid, or that they or any of them were disqualified, be as valid as if
every such person had been duly appointed and was qualified to be a director.
-8-
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the Act or of these Bye-laws,
notice is required to be given to any director or shareholder, it shall not be
construed to require personal notice, but such notice may be given in writing,
by mail, addressed to such director or shareholder, at his address as it appears
on the records of the Company, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail or international airmail (as the case may be). Notice to
directors may also be given by telegram or telecopier transmission.
Section 2. Whenever any notice is required to be given to shareholders
under the provisions of the Acts or of these Bye-laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice shall be deemed
equivalent thereto.
Section 3. Timely written notice of any shareholders proposal (including
for the election of directors) shall be given to the Board of Directors before
any annual general meeting of shareholders. To be timely, a shareholder's notice
must be received not less than forty-five days nor more than seventy-five days
prior to the first anniversary of the date on which the Company first mailed its
proxy materials for the preceding year's annual general meeting; provided,
however, that in the event that the date of the annual general meeting is
advanced by more than thirty days or delayed by more than sixty days from the
anniversary of the preceding year's annual general meeting, notice by the
shareholder to be timely must be so received not earlier than the ninetieth day
prior to such annual general meeting and not later than the close of business on
the later of (1) the sixtieth day prior to such annual general meeting or (2)
the tenth day following the date on which notice of the date of the annual
general meeting was mailed or public disclosure thereof was made by the Company,
whichever first occurs. Each such notice shall set forth as to each matter the
shareholder proposes to bring before the annual general meeting: (a) a brief
description of the business desired to be brought before the annual general
meeting and the reasons for conducting such business at the meeting, (b) the
name and address, as they appear on the Company's books, of the shareholder
proposing such business, (c) the class, series and number of shares of the
Company which are beneficially owned by the shareholder and (d) any material
interest of the shareholder in such business. To be properly brought before a
special general meeting, business must be (i) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors or (ii) otherwise properly brought before the meeting. No business
shall be conducted at any meeting of the shareholders except in accordance with
the procedures set forth in this Article IV, Section 3. The presiding officer of
the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with
the provisions of this Article IV, Section 3, and if he or she should so
determine, any such business not properly brought before the meeting shall not
be transacted. Nothing herein shall be deemed to affect any right of
shareholders to request inclusion of proposals in the Company's proxy statement
pursuant to Rule 14a-8 under the U.S. Securities Exchange Act of 1934, as
amended.
ARTICLE V
OFFICERS
Section 1. The officers of the Company shall be chosen by the Board of
Directors and shall be a Chief Executive Officer, a Chairman of the Board, a
President, a Vice President and a Secretary. The Board of Directors may also
choose one or more Executive Vice Presidents, Senior Vice Presidents, additional
Vice Presidents, Assistant Secretaries, a Treasurer and Assistant Treasurers.
Subject to the Act, any number of offices may be held by the same person, unless
these Bye-laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each annual
general meeting of shareholders shall choose a Chief Executive Officer, a
Chairman of the Board, a President, a Vice President, a Secretary, and a
Treasurer.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary, including, but not limited to, a Chief
Operating Officer, a Chief Financial Officer and a General Counsel,
-9-
all of whom shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors.
Section 4. The salaries of all officers of the Company shall be fixed by
the Board of Directors.
Section 5. The officers of the Company shall hold office until their
successors are elected and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Company shall be filled by the Board of Directors.
THE CHIEF EXECUTIVE OFFICER
Section 6. The Chief Executive Officer shall have and may exercise such
powers as are, from time to time, assigned to him by the Board of Directors and
as may be provided by law, and shall preside at all meetings of the Board of
Directors or shareholders in the event that the Chairman of the Board is absent.
Section 7. The Chief Executive Officer may execute bonds, mortgages and
other contracts requiring a seal under the seal of the Company, except where
required by law or these Bye-laws to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Company.
THE CHAIRMAN OF THE BOARD
Section 8. The Chairman of the Board shall preside at all meetings of the
Board of Directors and of the shareholders. The Chairman of the Board shall have
and may exercise such powers as are, from time to time, assigned to him by the
Board of Directors and as may be provided by law.
Section 9. The Chairman of the Board may execute bonds, mortgages and other
contracts requiring a seal under the seal of the Company, except where required
by law or these Bye-laws to be otherwise signed and executed and except where
the signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Company.
THE PRESIDENT AND VICE PRESIDENTS
Section 10. In the absence of the Chief Executive Officer and the Chairman
of the Board, the President shall preside at all meetings of the shareholders
and the Board of Directors. In the absence of the Chairman of the Board and the
Chief Executive Officer, or in the event of their inability or refusal to act,
the President shall perform the duties of the Chairman of the Board and the
Chief Executive Officer and, when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chairman of the Board and the Chief
Executive Officer. The President shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 11. The President may execute bonds, mortgages and other contracts
requiring a seal under the seal of the Company, except where required by law or
these Bye-laws to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly delegated by the Board of Directors to
some other officer or agent of the Company.
Section 12. In the absence of the President or in the event of his
inability or refusal to act, the Executive Vice President, if any (or in the
event there be more than one Executive Vice President, the Executive Vice
President in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of their election), shall perform the
duties of the President and, when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. In the absence of the
President and all the Executive Vice Presidents or in the event of their
inability or refusal to act, the Senior Vice President, if any (or in the event
there be more than one Senior Vice President, the Senior Vice President in the
order designated by the Board of Directors, or in the absence of any
designation, then in the order of their election), shall perform the duties of
the President and, when so
-10-
acting, shall have all the powers of and be subject to all the restrictions upon
the President. In the absence of the President, all Executive Vice Presidents
and all Senior Vice Presidents or in the event of their inability or refusal to
act, the Vice President, if any (or in the event there be more than one Vice
President, the Vice President, in the order designated by the Board of
Directors, or in absence of any designation, then in order of their election),
shall perform the duties of the President and, when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. The
Executive Vice Presidents, the Senior Vice Presidents and Vice Presidents shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 13. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the shareholders and record all the proceedings of
the meetings of the Company and of the Board of Directors in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or the Chairman
of the Board, under whose supervision he shall be. The Secretary and any
Assistant Secretaries shall have custody of the common seal(s) of the Company
and shall have the authority to affix the same to any instrument requiring it
and, when so affixed, it may be attested by the signature of the Secretary or
any Assistant Secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the Company and to attest the affixing by
his signature.
Section 14. The Assistant Secretary, if any, or, if there be more than one,
the Assistant Secretaries in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the Secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURER
Section 15. The Treasurer or, if there is no Treasurer, a Vice President
shall have the custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board of Directors.
Section 16. The Treasurer or, if there is no Treasurer, a Vice President
shall disburse the funds of the Company as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chairman of the Board and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his transactions
as Treasurer and of the financial condition of the Company.
Section 17. The Assistant Treasurer, if any, or, if there shall be more
than one, the Assistant Treasurers in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF SHARES
Section 1. Every holder of shares in the Company shall be entitled to have
a certificate signed by, or in the name of the Company by, the Chief Executive
Officer or the Chairman of the Board or the President or an Executive Vice
President, or a Senior Vice President or a Vice President, and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the
Company, certifying the number of shares owned by him in the Company.
-11-
Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid shares
the total amount of the consideration to be paid therefor and the amount paid
thereon shall be specified.
If the Company shall be authorized to issue more than one class of shares
or more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
shares or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Company shall issue to represent such
class or series of shares, provided that, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the Company
shall issue to represent such class or series of shares a statement that the
Company will furnish without charge to each shareholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of shares or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any or all of the signatures and/or the seal of the Company on
the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Company with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
LOST CERTIFICATES
Section 3. The Board of Directors, either directly or through the Secretary
as its designee, may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Company
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of shares to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors or the Secretary may, in its or his discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it or he shall require and/or to give the
Company a bond or indemnity in such sum as it or he may direct as indemnity
against any claim that may be made against the Company with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF SHARES
Section 4. Upon surrender to the Company or the transfer agent of the
Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer and, where
applicable, a duly executed instrument of transfer, it shall be the duty of the
Company to issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the Company may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of shares or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date. A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting,
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
REGISTERED SHAREHOLDERS
Section 6. The Company shall be entitled to recognize the exclusive right
of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equita-
-12-
ble or other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Bermuda.
Section 7. In the case of the death of a shareholder, the survivor or
survivors where the deceased shareholder was a joint holder, and the legal
personal representatives of the deceased shareholder where the deceased
shareholder was a sole holder, shall be the only persons recognized by the
Company as having any title to the deceased shareholder's interest in the
shares. Nothing herein contained shall release the estate of a deceased joint
holder from any liability in respect of any share which had been jointly held by
such deceased shareholder with other persons. Subject to the provisions of
Section 52 of the Act, for the purpose of this Bye-law, legal personal
representative means the executor or administrator of a deceased shareholder or
such other person as the Board of Directors may in its absolute discretion
decide as being properly authorized to deal with the shares of a deceased
shareholder.
Section 8. Any person becoming entitled to a share in consequence of the
death or bankruptcy of any shareholder may be registered as a shareholder upon
such evidence as the Board of Directors may deem sufficient or may elect to
nominate some person to be registered as a transferee of such share, and in such
case the person becoming entitled shall execute in favor of such nominee an
instrument of transfer. On the presentation thereof to the Board of Directors,
accompanied by such evidence as the Board of Directors may require to prove the
title of the transferor, the transferee shall be registered as a shareholder but
the Board of Directors shall, in either case, have the same right to decline or
suspend registration as it would have had in the case of a transfer of the share
by that shareholder before such shareholder's death or bankruptcy, as the case
may be.
ARTICLE VII
GENERAL PROVISIONS DIVIDENDS
Section 1. Dividends upon the shares of the Company, subject to the
provisions of the Act, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares, subject to the provisions of the Act.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the Company available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for repairing or maintaining any
property of the Company, or for such other purpose as the directors shall think
conducive to the interest of the Company, and the directors may modify or
abolish any such reserve in the manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the Company shall
be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the Company shall be the calendar year unless
another fiscal year is fixed by resolution of the Board of Directors.
ACCOUNTS
Section 5. The Board of Directors shall cause to be kept proper records of
account with respect to all transactions of the Company. Such records of account
shall be kept at the registered office of the Company or, subject to Section
83(2) of the Act, at such other place as the Board thinks fit and shall be
available for inspection by the directors during normal business hours.
-13-
Section 6. Subject to any rights to waive laying of accounts pursuant to
Section 88 of the Act, the accounts of the Company shall be audited at least
once in every year and financial statements as required by the Act shall be laid
before the shareholders in general meeting.
SEAL
Section 7. The Board of Directors may adopt a common seal (and duplicates
thereof for use outside Bermuda) having inscribed thereon the name of the
Company, the year of its continuation to Bermuda and the word "Bermuda." The
seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
INDEMNIFICATION/LIMITATION
Section 8. The Company shall indemnify its officers, directors and
employees to the fullest extent possible except as prohibited by the Act.
Expenses (including attorneys' fees) incurred by an officer or director of
the Company in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Company pursuant to the Act.
An officer or director of the Company shall not be personally liable to the
Company or its shareholders for monetary damages for any breach of fiduciary
duty as a director or officer, except to the extent that such limitation is
prohibited by the Act.
The indemnification and advancement of expenses and the limitation of
liability provided by this section shall not be deemed exclusive of any other
rights which any officer, director or employee, as such, may have or hereafter
acquire under the Act, any provision of these Bye-Laws, or any agreement or
otherwise. Any repeal or modification of the foregoing provisions of this
section shall not adversely affect any right or protection existing at the time
of such repeal or modification.
NUMBER AND GENDER
Section 9. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
SEPARABILITY
Section 10. In case any provision of these Bye-Laws shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
ARTICLE VIII
AMENDMENTS
Section 1. No Bye-Law shall be rescinded, altered or amended and no new
Bye-Law shall be made until the same has been approved by a resolution of the
Board of Directors and by a resolution of the shareholders.
-14-